Background
On the 11th June 2024, the Minister for External Relations decided to approve law drafting instructions to amend the Charities (Jersey) Law 2014 (the “2014 Law”). MD-ER-2024-455 The proposed ministerial order extends the meaning of reportable matters to provide the Charity Commissioner with greater powers to exclude governors of charities on safeguarding grounds. These changes are designed to enhance public safety for those who receive services from or work with charities.
The Charity Commissioner sought the views of charity governors about the proposed changes, inviting them to comment about the proposals during February 2025.
The proposed changes
It has been proposed that from the 1st June 2025, charities will need to use a revised fit and proper person declaration form when submitting an application to register or completing a charity’s annual return to the Charity Commissioner.
The new declaration form will not need to be submitted to the Commissioner, but the applicant or governors of the charity will need to confirm that they have each completed the new form and the charity will need to keep copies of them in case the Commissioner wishes to see them in the future.
Currently, the fit and proper person declaration requires governors to confirm that no reportable matter is applicable to him or her. A reportable matter includes misconduct in respect of serving as a governor of a registered charity, disqualification as a director, bankruptcy, and convictions for certain offences.
This criteria is being extended from the 1st June 2025 to include as reportable matters:
- Any unspent convictions
- Any convictions relating to offences against children or vulnerable adults (whether spent or unspent).
A governor must promptly report to their charity and the Charity Commissioner any reportable matter. If a governor reports a reportable matter to the Commissioner, the Commissioner must make inquiries to determine whether the governor is a fit and proper person to be a governor. A person must not act as a governor of a registered charity at any time after reporting a reportable matter unless the Charity Commissioner has given permission for them to do so or has applied conditions under which the person may continue to operate as a charity governor.
The consultation results
The Office of the Jersey Charity Commissioner wrote to all registered charities setting out the proposed changes and inviting comment. In total, the governors of 27 charities responded to the consultation. 24 charities (89% of respondents) were in favour of the proposed changes and 3 charities (11% of respondents) were against the proposals.
Some of the comments from the charities in favour of the proposals were as follows:
“I feel that these changes are a positive step towards enhancing the protection and integrity of our charities.”
[we] “agree that it is appropriate to require the declaration of any convictions relating to offences against children or vulnerable adults, whether spent or unspent. This change aligns with best practices in safeguarding and ensures greater protection for those who receive services from or engage with charities.”
“In our view the changes proposed are reasonable and proportionate and are fully supported by our charity.”
“we require our governing body to be DBS checked. There appears to be no mention of this, but adding this requirement for charitable governors would provide a belt and braces approach regarding the offences against children element and would be particularly useful in charities relating to young people.”
Some of the comments from the charities opposed to the proposals were as follows:
“there are many convictions which are simply irrelevant to the objectives. An example of a few of questionable areas by way of examples. Motoring, Speeding, Parking and careless driving. There are other offenses in relation to matters like uncontrolled dogs, riding on the beach outside permitted hours. I suspect that there are many other instances which would not be relevant to the point in issue.”
“annual reporting requirements are onerous enough as it is, particularly for small charities with limited resources, and it is difficult to see what greater protection the proposed new requirements would bring to the general public in their dealings with Jersey charities.”
“I earnestly hope the Minister will reconsider the proposal. If it is not reconsidered, then I think the compromise you have advanced of lodging with the charity the relevant report and having that available to the Commissioner is proportionate.
The draft legislation should be reconsidered though. It is over the top and disproportionate to any problem. The following factors seem to be relevant
Telling charity governors of all unspent convictions means telling one’s colleagues of speeding and traffic offences and minor infractions of any kind. Apart from causing embarrassment, what evil in relation to administering charities is being addressed by this?
Under the Sexual Offences legislation, any sexual offence against children (and adults) will result in the offender being subject to the notification requirements until released from them, which will never be less than five years after the conviction absent truly exceptional circumstances. Experience is that it is much more. In cases where there is risk to individuals or the public, the court is asked to make a restraining order, and routinely does.
A non-sexual offence against children will also involve the court considering whether a restraining order is appropriate. If it is, then the danger to children by the offender being involved in the charity at all, not necessarily just as a governor but also as a helper, will be tackled by that order. If it is not, why should the charity be concerned about it? Can it really be said with any justification that an offender who is no danger to children or vulnerable adults should not be a charity governor? If it is said that the court may not always get the decision right, which of course is true, in my view it gets it right nearly all the time and this goes to the lack of proportionality in the proposal.
In short, the proposed legislation reflects increasing State involvement in matters which do not and should not concern the State. It is duplicative of other protections which exist. It is likely to be counterproductive as an inhibiting factor against an offender seeking to make amends for his offending by good works in the charity sector and is thus positively harmful to the social fabric of the island. It will do no good and can only do harm both in terms of the inhibition factor mentioned and as adding to time and expense in the administration of charities.”
The Commissioner’s response to consultation
The Charity Commissioner is grateful to all charity governors who have taken the time to get in touch with their views on the topic. Whilst the majority of views submitted are overwhelmingly in favour of the proposed changes, some important views against the proposals need to be further considered.
- Minor convictions
When considering a reportable matter and the decision whether the governor is a fit and proper person to be a governor, the Charity Commissioner will adhere to guidance that is based upon the Attorney General’s guidance relating to the approach taken by those considering application to the Honorary Police where the applicant has a criminal record. That guidance can be found here. When applying the Commissioner’s guidance, unless the context would indicate otherwise, minor road traffic offences, uncontrolled dogs etc. would not be matters that would result in the governor being considered unfit. The Charity Commissioner’s Guidance will be published on his website.
- Annual reporting requirements are onerous enough as it is, particularly for small charities with limited resources
The law currently in force requires charity governors and those submitting an application to register a charity, to complete a fit and proper declaration for all governors and confirm that there are no reportable matters to the Commissioner. The proposed changes to come into effect on the 1st June 2025 do not alter this requirement. It is the content of the fit and proper person declaration and the offences caught by the declaration that are proposed to be amended. As such, the changes do not increase the administrative burden on charities.
- The draft legislation is disproportionate to any problem
The 2014 Law currently in force, requires charity governors and those seeking to register a new entity to report convictions (whether spent or unspent) in relation to offences under the 2014 Law and unspent convictions for certain finance related offences including money laundering, terrorist financing, deception or dishonesty. There are currently no reporting requirements relating to violent and/or sexual offences or offences against children. Many charities provide services to children and other vulnerable groups. Currently, it remains possible for governors of charities to be convicted of such offences without reporting the matter to the charity and Commissioner. This could place vulnerable individuals at risk and undermine public trust and confidence in both registered charities and the Commissioner.
It is not anticipated that the proposed changes will result in a significant increase in the number of matters reported to the Commissioner from the existing 1,700 or so charity governors and it will not inhibit in any way, offenders seeking to make amends for their offending by seeking to do good works in the charity sector acting as volunteers or employees.
It is anticipated that the proposed changes will assist charity governors to have better oversight of the management and control of registered charities and empower them to better manage any potential risks to the children and vulnerable people that they may serve.
Next steps
In response to the consultation feedback received, the Charity Commissioner will:
- recommend to the Minister for External Relations that the Charities (Reportable Matters) (Jersey) Order 202- is made to come into force on the 1st June 2025
- publish the Draft Charities (Reportable Matters) (Jersey) Order 202- on his website
- publish the “Guidance- disqualification of governors” on his website
